Thomas Potter, III

Thomas Potter, III

Burr & Forman

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Banking & Financial Services E-Note - September 2014

In This Issue: - CFPB to Regulate Nonbank Institutions That Fund Auto Loans - DOJ Suggests Banks Turn In Employees to Avoid Criminal Charges - Regulators Requiring Banks to Carry Higher Capital...more

10/10/2014 - Apple Automotive Loans Banks CFPB Credit Cards Criminal Prosecution Data Breach Data Protection Dodd-Frank DOJ Foreign Banks Fraud Mobile Banking Multinationals Nonbank Firms Target

Court Rejects GOP Challenge to Adviser Pay-to-Play Regulations

On September 30, the D.C. District Court rejected two GOP state committees’ challenge to the SEC’s regulation prohibiting pay-to-play among investment advisors. Bowing to “curious” precedent in which words don’t mean what...more

10/3/2014 - Compliance Investment Adviser Pay-To-Play SEC

Sixth Circuit Rejects Private Action Under ’40 Act § 36(A)

Ruling in a case of first impression, the Sixth Circuit rejected an implied cause of action under Section 36(a) of the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. Although the Circuits remain split, recent...more

10/2/2014 - Breach of Duty ETFs Fiduciary Duty Investment Company Act of 1940

Forum-Selection vs. Arbitration Issue Teeing Up for Supremes

The Second Circuit stayed its mandate last week to allow public-pension litigants to file cert petitions seeking review of its August holding that a subsequent account-agreement forum-selection clause requiring federal-court...more

9/23/2014 - Arbitration Class Action Class Certification FINRA Forum Selection Clause Goldman Sachs Pensions Public Employees Stays

FINRA: 75 Years of a Sick-Chicken Survivor

FINRA celebrated its 75th Anniversary this September 18. It is the “largest independent regulator for all securities firms doing business in the United States,” with a notionally voluntary membership of over 4,100 securities...more

9/22/2014 - Broker-Dealer FINRA NASD Self-Regulatory Organizations

Banking & Financial Services E-Note - August 2014

In This Issue: - Lawmakers Urge Fed to Clarify Emergency Lending Rules - CFPB Pushing Colleges to Be More Transparent in Bank Deals - Report Finds Reversal in Trend Toward Subprime Auto Loans - CFPB Concerned...more

8/29/2014 - Automotive Loans Banks Casinos CFPB Cyber Attacks Cybersecurity Lending Money Laundering Transparency

Second Circuit Holds Subsequent Forum-Selection Clause Trumps FINRA Arbitration Requirement

The Second Circuit joined the Ninth in holding that a subsequent contractual forum-selection clause requiring federal-court litigation trumps the base requirement that FINRA member firms must arbitrate upon a customer’s...more

8/26/2014 - Arbitration Citigroup FINRA Forum Selection Clause Goldman Sachs

OCIE Announces Exam Initiative for Newly-Registered Municipal Advisors

The SEC’s Office of Compliance Inspections and Examinations (“OCIE”) announced August 19 a two-year, three-phase examination initiative targeting newly-registered municipal advisors. SEC Press Rel. 2014-170 (Aug. 19, 2014). ...more

8/26/2014 - Compliance Municipal Advisers OCIE SEC

MSRB Proposal Extends Rule G-37 “Pay-to-Play” Prohibitions to Municipal Advisors

In its August 18 Regulatory Notice No. 2014-15, the Municipal Securities Rulemaking Board (“MSRB”) proposed amendments to Rule G-37 that would extend the long-standing “pay-to-play” prohibition’s reach to newly-registered...more

8/25/2014 - Compliance MSRB Municipal Advisers Pay-To-Play Underwriting

SEC Announces Additional Settlement Under Municipal Continuing Disclosure Cooperation Initiative

The SEC recently announced another issuer settlement under its Continuing Disclosure Cooperation Initiative (see our blogs First Settled Proceeding (July 23, 2014). In this settled action, Kansas consented to the standard...more

8/21/2014 - MCDC Municipal Securities Issuers Sanctions SEC Settlement

SEC Modifies Municipal-Securities Enforcement Initiative

Responding to industry complaints, the SEC’s Enforcement Division modified its Municipal Continuing-Disclosure Cooperation (“MCDC”) Initiative to (a) extend the deadline for issuer disclosures until December 1 (from September...more

8/21/2014 - Compliance Enforcement Enforcement Actions MCDC SEC

Banking & Financial Services E-Note - July 2014

In This Issue: - New Rule Will Require Banks to Provision for Bad Loans Earlier - Four Years After Dodd-Frank, Law Still Unfinished - Senate Panel to Review Borrowing of 'Too Big to Fail' Banks - Community...more

8/8/2014 - Banks CFPB Community Banks Dodd-Frank Federal Reserve Loans Marijuana Prepaid Payment Products Too Big to Fail TRIA

MSRB Proposes Revised Duties for Municipal Advisors

The MSRB proposed a Revised Draft of Rule G-42 (“Duties of Non-Solicitor Municipal Advisors”) by Reg. Not. 2014-12 issued July 23, 2014. We addressed the original proposal in our January 23 blog post. The Revised Draft...more

7/31/2014 - Compliance Disclosure Requirements Financial Regulatory Reform MSRB Municipal Advisers

SEC Approves Amended FINRA Rule 2081 Prohibiting Settlements Conditioned on Expungement

On July 22, the SEC approved amendments to FINRA Rule 2081 that prohibit member firms from conditioning arbitration settlements (or seeking to) upon a customer’s assent to CRD expungement relief. The Rule amendments prohibit...more

7/25/2014 - Arbitration Expungement FINRA SEC Settlement

SEC Announces First Settled Proceeding Against Municipal Issuer under MCDC Initiative

The SEC announced July 8 its first settled administrative proceeding against a municipal issuer under its Municipal Continuing Disclosure Cooperation (“MCDC”) Initiative. In its Order, the SEC charged Kings Canyon Joint...more

7/24/2014 - Administrative Hearings Dodd-Frank MCDC Municipal Securities Issuers Municipal Securities Market Municipalities School Districts SEC Settlement SIFMA

Banking & Financial Services E-Note

In This Issue: - 70 Countries Agree to Share Bank Information in Tax Evasion Probe - Financial Industry Pushes Back Against Proposed ERISA Requirements - Federal Reserve Proposes Tougher Stress Tests for...more

7/11/2014 - Banking Sector Banks Choke Point ERISA Federal Reserve Information Sharing Payday Loans Stress Tests Tax Evasion

It Matters Who’s the Plaintiff: Janus and Stoneridge May Not Help Against The SEC, but Monterosso Shouldn’t Apply as...

The SEC recently made the unusual move of asking the Eleventh Circuit to publish its previously-unpublished per curiam decision in SEC v. Monterosso, 2014 WL 2922670 (11th Cir. June 30, 2014). The decision was not merely a...more

7/9/2014 - Rule 10b-5 SEC SEC v Monterosso

Corporate & Tax E-Note - June 26, 2014

In This Issue: - SBA Ups Size Standards, Allowing 8,400 Firms to Become Small Biz - Auditors Want to Limit Reporting of 'Critical Audit Matters' - House Approves Permanent Extension of Small Business Tax...more

6/27/2014 - Auditors Board of Directors Cybersecurity EU Federal Contractors Government-Guaranteed Loans IPO Loans New Legislation Patent Reform Public Offerings SBA Small Business Startups Tax Incentives Tax Loopholes

Health Care E-Note - June 19, 2014

In This Issue: - Report Ranks U.S. Last Out of 11 in Health Care System Quality - Analysis Identifies Un-Tracked Avoidable Hospital Complications - Number of Doctors Employed by Hospitals Grew 34% Over 10...more

6/20/2014 - Background Checks Healthcare Healthcare Costs Healthcare Facilities Healthcare Reform Home Health Care Home Healthcare Workers Hospitals Pharmaceutical Pharmacies Physicians Quality of Care Standards

FINRA Fines & AWC’S for Blue-Sheet Violations on Which SEC Sought Admissions

I wrote earlier that the SEC was wrong to extend its “admission of wrongdoing” policy (once reserved for extreme cases) to negligent software-glitch misreporting of trade-data in the Scottrade case...more

6/6/2014 - Electronic Blue Sheets Fines Negligence Scottrade SEC

Trials Are About Truth; Consent Decrees Are About Pragmatism

I recently wrote about Judge Rakoff’s refusal to enter the SEC’s proposed consent decree in SEC v. Citigroup Global Markets, Inc., 827 F. Supp. 2d 328 (SDNY 2011) – and the shift in SEC enforcement policy that it prompted. ...more

6/5/2014 - Chevron Deference Citigroup Consent Decrees Enforcement Enforcement Actions Interlocutory Appeals Judge Rakoff Risk Management SEC SEC v Citigroup Settlement

Banking & Financial Services E - Note - May 2014

In This Issue: - Fed Regulator Calls for End of Banks' Self-Grading of Risk - Regulator Won't Act on Loan Limits for Fannie Mae and Freddie Mac - Community Bankers Support Tiered Banking Regulatory System -...more

5/23/2014 - Banks Community Banks Cybersecurity Data Protection Fannie Mae FFIEC Financial Regulatory Reform Freddie Mac Lending Limits Rule Risk Assessment Risk Management

The SEC’S New Municipal-Advisor Rules Go Effective July 1

The SEC’s new MA Rules become effective July 1, 2014, 17 CFR 240.15Ba1-1 through 1-8 and 15Bc4-1. Required by Dodd-Frank § 975, the Rules were adopted last year, but the SEC postponed their implementation from January to...more

5/16/2014 - Dodd-Frank Municipal Advisers SEC SIFMA

FINRA Moves To Make Expungement Independent

FINRA operates the Central Registration Depository (“CRD”) – the central, publicly-accessible licensure and registration information source on the US securities industry. Industry members seek to remove – “expunge” – ...more

5/15/2014 - Expungement FINRA Licensing Rules Settlement Unfair or Deceptive Trade Practices

Banking & Financial Services E-Note

In This Issue: - Appeals Court Says Dodd-Frank Clause Violates 1st Amendment - Basel Committee Eases Derivatives Rule for Banks - CFPB Revises International Money Transfer Rule - AG Seeks More Enforcement...more

5/1/2014 - Banks Bitcoins CFPB Cyber Attacks Cybersecurity Data Protection Derivatives Dodd-Frank FHA First Amendment Money Transfer Retailers

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